Siu v Department of Family and Community Services

[2016] NSWCATAD 115

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Siu v Department of Family and Community Services [2016] NSWCATAD 115
Hearing dates:	On the papers
Date of orders:	10 June 2016
Decision date:	10 June 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Lucy, Senior Member
Decision:	1. The respondent’s decision to refuse to provide access to information is varied in accordance with paragraphs 32, 77, 78, 79, 80 and 85 of this decision, and the respondent is to provide the applicant with access to information in accordance with those paragraphs within 28 days of the date of this decision.
Catchwords:	GOVERNMENT INFORMATION – Access to information – Decision to refuse access – Conclusive presumption of overriding public interest against disclosure - Whether information contained in a report to which s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) applies – Tribunal entitled to go behind a s 29(1A) certificate to examine contents of documents – Application of s 29 to information provided before commencement of Children (Care and Protection) Act 1987 PUBLIC INTEREST CONSIDERATIONS IN FAVOUR OF DISCLOSURE – Personal factors of the application – Circumstance that applicant was in foster care for most of her childhood – Motive of seeking legal advice on claims of abuse in care – Whether Tribunal is entitled to consider strength of prospective claims when taking applicant’s motives into account PUBLIC INTEREST CONSIDERATIONS AGAINST DISCLOSURE – Confidential information considerations – Evidence required for respondent to discharge onus – No evidence concerning prejudice to supply of confidential information – Circumstances in which Tribunal may draw inferences from documents – Personal information consideration – Personal information of a child – Whether this consideration applies where child at date information created has become an adult BALANCING OF PUBLIC INTEREST CONSIDERATIONS – Weight of public interest considerations against disclosure diminished by effluxion of time – Personal factors of the application where applicant a foster child favour provision of access to information concerning biological parents
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children (Care and Protection) Act 1987 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Savings and Transitional) Regulation 2000 (NSW)
Cases Cited:	Adams v Department of Family and Community Services [2016] NSWCATAD 46 Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13 Hurst v Wagga Wagga City Council [2011] NSWADT 307 McKinnon v Blacktown City Council [2012] NSWADT 44 Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 Raven v The University of Sydney [2015] NSWCATAD 104 Gama v Qantas Airways Limited (No 2) [2006] FMCA 1767 State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27 G v H (1994) 181 CLR 387 Carr v Baker (1936) 36 SR (NSW) 301 Jones v Dunkel (1959) 101 CLR 298 Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 Field v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 153 Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59
Category:	Principal judgment
Parties:	Jodie Siu (Applicant) Department of Family and Community Services (Respondent)
Representation:	Solicitors: Wyatt Lawyers & Advisers (Applicant) Department of Family and Community Services (Respondent in person)
File Number(s):	1410641 and 1410663

Reasons for decision

1. In two separate applications, the applicant applied to the respondent (“FACS”) for access to information concerning her foster care and that of her sister under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”). FACS provided her with access to some information and refused access to other information.

2. On 25 November 2014, the applicant applied to this Tribunal for review of FACS’s decision to refuse her access to information. The applicant filed two separate applications. One application (1410641) was for a review of a decision of FACS made on 16 October 2013 to refuse access to some of the information sought in her child protection files and those of her sister. The other application (1410663) was for review of a decision of FACS made on 26 August 2014 to refuse access to information contained in her sister’s departmental file.

3. On 17 April 2015, the Secretary of FACS, by his authorised officer Roderick Best, Acting General Counsel, certified, pursuant to s 29(1A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“CYPCP Act”), that certain documents containing information the subject of the applicant’s applications are reports to which s 29(1A) of the CYPCP Act applies (“s 29(1A) certificate”). The text of s 29(1A) is set out below.

4. The applicant said in her applications that she wanted access to the information because she had been sexually abused by her foster siblings between 1987 and 1992. She also claimed that her sister was physically abused by the same foster siblings before her removal from their foster carers in about 1985. The applicant relied upon a media release dated 3 November 2014 from FACS entitled “Assisting Victims of Child Sexual Abuse” which stated that the Department is seeking to make “care records available as soon as possible.”

5. The applicant authorised FACS to contact family members and foster family members about her application for the purpose of consulting with them about the provision of access to their personal information, but FACS was unable to do so as it did not have their contact details.

6. FACS submitted that there was an overriding public interest against disclosure of the information to which it had refused access. It relied upon public interest considerations against disclosure contained in the table in s 14, being the personal information consideration (cl 3(a)), the confidential information consideration (cl 1(d)) and the information provided in confidence consideration (cl 1(g)). It also relied, in relation to some information, upon the conclusive presumption against disclosure of information in cl 10 of Sch 1 to the GIPA Act. The full text of these provisions is set out below.

7. FACS provided the Tribunal with a copy of all the information it had withheld from the applicant, as well as some of the redacted documents it had provided to the applicant. It provided CDs showing the basis upon which each redaction was made. It also provided schedules indicating the public interest considerations upon which it relied in relation to the information to which it had refused access.

8. The parties consented to the matter being determined on the papers and I formed the view that the issues for determination could be adequately determined in the absence of the parties by considering the written submissions and other documents or material lodged with or provided to the Tribunal. Accordingly, I made an order dispensing with a hearing (Civil and Administrative Tribunal Act 2013 (NSW), s 50(2)).

DOCUMENTS TO WHICH ACCESS IS NOT SOUGHT

9. The applicant has indicated, by a solicitor’s letter dated 4 March 2015, that she no longer seeks access to documents to which the respondent refused access in full with only content relating to events or information dated before May 1983. Folios 1-10, 13, 17-20, 24-26, 28, 38 and 69 of Part 1 of the applicant’s file and folios 1-10, 13-14, 20, 21, 23-26 and 31 of the applicant’s sister’s file meet this description. Accordingly, the information in these folios is now outside the scope of the applicant’s application, as narrowed by her solicitors.

RELEVANT LEGISLATION

10. The object of the GIPA Act is to “is to open government information to the public” in stated ways “[i]n order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective” (GIPA Act, s 3(1)).

11. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (GIPA Act, s 5).

12. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)).

13. There is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). There is an overriding public interest against disclosure of government information if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure (GIPA Act, s 13).

14. Subsections 14(1) and (2) of the GIPA Act provide:

“14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.”

15. Clause 10 of Sch 1 to the GIPA Act provides:

“10 Care and protection of children

It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in a report to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies.”

16. Section 29(1), (1A) and (6) of the CYPCP Act relevantly provide:

“29 Protection of persons who make reports or provide certain information

(1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:

…

(d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings):

…

(iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal,

… and

(e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and...

(1A) A certificate purporting to be signed by the Director-General that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.

(6) In this section:

….

report includes a report under sections 24, 25, 27, 120, 121 and 122.”

17. The table to s 14 relevantly provides:

“1 Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

…

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

…

(g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence,

…

3 Individual rights, judicial processes and natural justice

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:

(a) reveal an individual’s personal information, …

…

(g) in the case of the disclosure of personal information about a child—the disclosure of information that it would not be in the best interests of the child to have disclosed.”

18. “Personal information” is defined to mean “information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion” (GIPA Act, Sch 4, cl 4(1)). To “reveal” information “means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)" (GIPA Act, Sch 4, cl 1).

19. Section 15 of the GIPA Act provides for the principles which apply when determining whether there is an overriding public interest against disclosure, as follows:

“15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.”

20. The personal factors of an application may be taken into account in favour of providing an applicant with information, or in determining whether there is an overriding public interest against disclosure of the information, in accordance with s 55 of the GIPA Act. Those personal factors are (s 55(1)):

“(a) the applicant’s identity and relationship with any other person,

(b) the applicant’s motives for making the access application,

(c) any other factors particular to the applicant.”

21. FACS has not relied upon the personal factors of the application as factors against disclosure. However, if applicable, the Tribunal may take them into account as factors in favour of disclosure pursuant to s 55(2).

22. The burden of establishing that its decision to refuse access to information is justified lies on FACS: GIPA Act, s 105(1).

23. The applicant is a person aggrieved by the respondent’s decisions who is entitled to apply to the Tribunal: GIPA Act, s 100. The Tribunal’s function is to decide what the correct and preferable decisions are having regard to the material before it: Administrative Decisions Review Act 1997 (NSW), s 63(1).

CONCLUSIVE PRESUMPTION OF OVERRIDING PUBLIC INTEREST AGAINST DISCLOSURE (Sch 1, cl 10)

24. FACS relied upon the conclusive presumption of an overriding public interest against disclosure in cl 10 of Sch 1 to the GIPA Act in respect of information in documents to which a s 29(1A) certificate applied, and in respect of other identified information (referred to below).

25. FACS claimed that the s 29(1A) certificate applied in relation to folios 9, 10, 17-19 and 28 of Part 1 of the applicant’s files, folios 45-46 of Part 2 of the applicant’s files and folios 62-65 of her sister’s files. As indicated above, the applicant is no longer seeking access to the information in folios 9, 10, 17-19 or 28 of Part 1 of her files. That leaves folios 45-46 of Part 2 of the applicant’s files and folios 62-65 of her sister’s files to be considered.

26. In a previous decision, Siu v Department of Family and Community Services [2015] NSWCATAD 192, I found that the s 29(1A) certificate is capable of applying to notifications made under s 22 of the Children (Care and Protection) Act 1987 (NSW), but not to notifications or reports made prior to the commencement of that Act. The respondent does not challenge that decision. Parts of the Children (Care and Protection) Act 1987 commenced on 18 January 1988 and other parts commenced on 22 September 1989.

27. Folios 45-46 of Part 2 of the applicant’s files bear a date of June 1998. This is after the commencement of the Children (Care and Protection) Act 1987 and before the commencement of the CYPCP Act. Accordingly, the s 29(1A) certificate is proof that the document is a report to which s 29 applies in the absence of evidence to the contrary (CYPCP Act, s 29(1A); Sch 3, cl 1; Children and Young Persons (Savings and Transitional) Regulation 2000 (NSW), cl 10). The Tribunal is entitled to look into the contents of the documents to which a s 29(1A) certificate applies in order to determine whether s 29 in fact applies to the information in the documents: Adams v Department of Family and Community Services [2016] NSWCATAD 46; Dewhirst v Department of Family and Community Services [2015] NSWCATAD 13 at [41]-[43].

28. I have examined the report itself (that is, the report contained in folios 45-46 of Part 2 of the applicant’s files) to determine whether it constitutes “evidence to the contrary.” In order to be a report to which s 29 applies, the document would need to be a notification under s 22 of the Children (Care and Protection) Act 1987; that is, a notification by a person who has formed a belief upon reasonable grounds that a child has been, or is in danger of being, abused or is a child in need of care (Children (Care and Protection) Act 1987, s 22; Children and Young Persons (Savings and Transitional) Regulation 2000 (NSW), cl 10). The question of whether the report meets this description is finely balanced. However, having examined the report, I am not satisfied that it does. Accordingly, there is no conclusive presumption of an overriding public interest against disclosure of the information in folios 45-46, by operation of cl 10 of Sch 1 to the GIPA Act.

29. Folios 62-65 of the applicant’s sister’s files bear a date prior to the commencement of the Children (Care and Protection) Act 1987. Accordingly, the s 29(1A) certificate does not apply to them. In my view, s 29(1) of the CYPCP Act does not apply to those files either, because the provision is presumed to apply prospectively. Further, the savings and transitional provisions do not apply to reports made before the commencement of the Children (Care and Protection) Act 1987: see Siu v Department of Family and Community Services [2015] NSWCATAD 192.

30. In addition to the folios the subject of the s 29(1A) certificate, FACS relied upon cl 10 of Sch 1 to the GIPA Act in relation to all of the information in folios 13-14, 20, 21 and 26 in the applicant’s sister’s files. These are all folios to which the applicant no longer seeks access, so it is not necessary to consider whether cl 10 applies to the information in those folios.

31. FACS also relied upon cl 10 of Sch 1 to the GIPA Act in relation to information which it had redacted in reliance upon Sch 1, cl 10 in folios 29, 48-49, 275 and 431 in Part 1 of the applicant’s files; 136, 141 and 145 in Part 2 of the applicant’s files; folios 18 and 33 in the Action Plan and folios 44-46, 51-52 and 211 in the applicant’s sister’s files. This information relates to reports which pre-date the commencement of the Children (Care and Protection) Act 1987. Accordingly, s 29 of the CYPCP Act does not apply to the information and the respondent has not discharged its onus of establishing that cl 10 of Sch 1 to the GIPA Act applies to it.

32. For these reasons, I find that cl 10 of Sch 1 to the GIPA Act does not apply to the information the subject of the applicant’s applications contained in the following folios and (where the folio has been redacted) identified by the respondent as being subject to cl 10 of Sch 1: folios 29, 48-49, 275 and 431 of Part 1 of the applicant’s files; folios 45-46, 136, 141 and 145 of Part 2 of the applicant’s files; folios 18 and 33 of the Action Plan in the applicant’s files; and folios 62-65 and 211 of the applicant’s sister’s files. Where cl 10 of Sch 1 is the only provision relied upon by the respondent for refusing access to the information, access to this information is to be provided to the applicant. Where another consideration against disclosure is also relied upon, the applicant’s entitlement to access the information is considered below.

PUBLIC INTEREST CONSIDERATIONS IN FAVOUR OF DISCLOSURE

33. As indicated above, there is a general public interest in favour of the disclosure of government information (GIPA Act, s 12(1)). The applicant has not made any submissions identifying any particular public interest considerations in favour of disclosure. I invited her solicitor to identify any public interest considerations in favour of disclosure on which she relied at a directions hearing held on 3 May 2016, but the applicant’s solicitor said she was content to rely upon the submissions filed.

34. I consider that one of the examples of public interest considerations following s 12(1) is particularly relevant in respect of much of the information, being that the information is personal information of the person to whom it is to be disclosed.

35. The applicant’s identity and relationship with persons, her motives for making the application and other factors particular to the applicant (including that she spent almost her entire childhood in out of home care) are also relevant as personal factors in favour of providing the applicant with access to the information (GIPA Act, s 55(1)(a), (b) and (2)). The applicant has or had a significant relationship with many people referred to in her files, including her mother, her foster parents and her sister. As a foster child, she has a particular interest in accessing information about her biological family and about the files held about her foster care. These factors favour providing access to the information she seeks.

36. As for the applicant’s motives, as indicated above, the applicant claims that she was sexually abused by her foster siblings and that her sister was physically abused by them. Her solicitor has indicated that the applicant seeks access to her file and her sister’s file for the purpose of obtaining legal advice on any claims the applicant may have.

37. The applicant has not explained how access to information concerning her sister would assist her in making a claim, or how it would assist her in obtaining advice about such a claim. In Field v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 153 at [104], when considering the applicant’s motive of obtaining government information so as to commence civil proceedings, the Tribunal commented that “[i]t is no part of this tribunal’s function to determine whether an applicant has or has not a possible cause of action against any other person or organization, or to estimate the chances of such an action being successful.” The Appeal Panel expressed no disagreement with this proposition when considering this part of the Tribunal’s decision: see Commissioner of Police, NSW Police Force v Field [2016] NSWCATAP 59 at [79].

38. The Tribunal accepts that the applicant’s motives for obtaining access to the information are as stated and that the Tribunal’s role is not to conduct a collateral inquiry into the prospects of an applicant’s prospective claims. The Tribunal considers that the applicant’s motives are personal factors in favour of access to the information sought.

PUBLIC INTEREST CONSIDERATIONS AGAINST DISCLOSURE

39. The public interest considerations against disclosure in the table to s 14 of the GIPA Act, on which the respondent relies, are all set out above. Each applies where “disclosure of the information could reasonably be expected to have” the stated effect.

40. The words “could reasonably be expected to” are to be given their ordinary meaning. In McKinnon v Blacktown City Council [2012] NSWADT 44, Molony JM said at [40]-[41]:

“40 There is a requirement, common to all the public interest considerations against disclosure in the Table to s 14, that disclosure "could reasonably be expected to" have the nominated effect. The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words –

... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.

41 Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that, at [61] –

... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." ...

See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2.”

41. It is necessary for the respondent to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect: McKinnon v Blacktown City Council [2012] NSWADT 44 at [44], GIPA Act, s 105(1).

Confidential information considerations (cl 1(d), (g))

42. The respondent has relied upon cl 1(d) in the table in s 14 of the GIPA Act in relation to some of the information, being that disclosure of the information could reasonably be expected to prejudice the supply to FACS of confidential information that facilitates the effective exercise of FACS’s functions. "Prejudice" is to be given its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

43. Further, or in the alternative, FACS relies upon cl 1(g) in the table in s 14 of the GIPA Act, being that disclosure of the information could reasonably be expected to result in the disclosure of information provided to an agency in confidence.

44. In Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 at [33], the Appeal Panel outlined the general approach to be adopted in determining whether or not information is confidential information, commenting that “the question of whether the information supplied is ‘confidential information’ must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received.” The Appeal Panel also noted at [28]-[30] that when determining whether the consideration applies in the circumstances of a particular case, the Tribunal is required to engage in a relatively abstract analysis.

45. There is a question as to the extent of evidence the respondent is required to adduce in order to discharge the onus of persuading the Tribunal that a particular consideration against disclosure applies. In Raven v The University of Sydney [2015] NSWCATAD 104 at [52], after referring to Camilleri, I observed:

“The ‘relatively abstract’ nature of the Tribunal’s analysis does not mean that the Tribunal may proceed upon mere speculation. There must be some evidentiary basis from which the Tribunal may infer that disclosure of the information sought could reasonably be expected to prejudice the supply to an agency of confidential information. It is not sufficient for the respondent to make an assertion that this is the case: cf Hynes v General Manager, Hawkesbury City Council [2004] NSWADT 135, at [123].”

46. FACS submits in respect of cl 1(d) that the relevant information was provided to it on a confidential basis, and that the information facilitates the effective exercise of its function of investigating and protecting children and young persons from risk of harm and generally looking after their safety, welfare and well-being. It submits in respect of cl 1(g) that the information has not been publicly disclosed.

47. Rebecca Jomaa, a Right-to-Information Officer of the respondent, provided a statement in these proceedings. The statement combines factual information, annexures and also submissions. The only evidence as to the confidentiality of the information from Ms Jomaa is in the form of a submission. Ms Jomaa states: “… the Respondent submits that its decision is correct because: … (a) The information contained in the above records was provided to the Respondent on a confidential basis; …” There is no further detail provided, or any break-down of the circumstances in which information was provided to FACS (or its predecessors) in respect of different types of records. Ms Jomaa does not provide any evidence or reasoning to support her submission that disclosure of the information could reasonably be expected to prejudice the supply to FACS of confidential information that facilitates the effective exercise of FACS’s functions. Nor is there any evidence provided as to the “conditions under which [FACS] conducts the service within which the information was received” (to use the language of Camilleri).

48. In some circumstances, the Tribunal may infer that information within a document is confidential from the face of the document and the surrounding circumstances (such as the legislative scheme at the time). However, where the respondent has the burden of proof, it is generally necessary for the respondent to adduce some evidence of the conditions under which it conducts or conducted the relevant service, particularly where many of the relevant events occurred 30 or more years ago, as in this case. It is also desirable, if the respondent is seeking to rely upon a legislative scheme which applied many years ago as the basis upon which it says the information was provided in confidence, to refer to the relevant legislative provisions which give rise to an obligation of confidentiality (if any), and the circumstances in which they arise, so that the applicant has an opportunity to respond. In this case, the respondent did not explicitly rely upon the legislative scheme which applied in the 1980s to support its contention that the information was confidential, nor did it identify the applicable provisions at that time.

49. The difficulty for the Tribunal is that it has very little evidence on which to base a decision that cl 1(d) or (g) applies. There is no evidence (other than any contained in the documents themselves) that any particular communication was made to a predecessor to FACS in confidence, or that there was any general understanding with any particular persons, or with the community generally, that communications to the Department about foster children (for example) would be treated confidentially. The source of the information held by the respondent is not always clear, which makes it more difficult to determine whether it was provided in confidence. Without evidence of the relevant circumstances, it is very difficult for the respondent to discharge its onus of establishing that the information was provided to its predecessor confidentially or that its disclosure could reasonably be expected to prejudice the supply to FACS of confidential information in the future.

50. As any conclusion that information is confidential must be drawn almost entirely from inferences, it is convenient to review the legal principles concerning the drawing of inferences. In doing so, I have drawn upon Raphael FM’s very helpful discussion of the case law concerning the circumstances in which a court or tribunal may draw inferences in Gama v Qantas Airways Limited (No 2) [2006] FMCA 1767 (applied in a predecessor to this Tribunal in State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27 at [94]). Although Raphael FM’s discussion of the drawing of inferences occurred in the context of a discrimination claim, the principles are of wider application.

51. In G v H (1994) 181 CLR 387, Brennan and McHugh JJ said at 390:

“An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law.”

52. In Carr v Baker (1936) 36 SR (NSW) 301, Jordan CJ commented that, in order to find a fact by drawing an inference:

“There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture … the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture.”

53. In Jones v Dunkel (1959) 101 CLR 298 at 305, Dixon CJ commented that the law does not “authorise a court to choose between guesses, … on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.” In the same case, Kitto J observed at 305: “One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.”

54. I have determined that the circumstance that information was provided to a predecessor of FACS in confidence may be inferred from the face of some of the documents provided. I have made such an inference where it has appeared reasonably probable, from the circumstances in which the information was provided and the nature of the information itself, or where for some other reason the information held by the respondent positively suggests, that this was the case.

55. Even where the Tribunal has inferred that the information was provided to a predecessor of FACS in confidence, FACS has not addressed, in its submissions or evidence, how the effluxion of time affects the question of whether disclosure of the information could reasonably be expected to prejudice the supply of confidential information in future for the purposes of cl 1(d). The fact that the information in question was provided to FACS a long time ago, in many instances over 30 years ago, could reasonably be expected to significantly diminish any such prejudice. In the absence of any evidence or submissions on the question, I am not satisfied that the respondent has discharged its onus of establishing that cl 1(d) applies in respect of any of the information sought by the applicant.

56. The respondent has relied upon clause 1(g) in relation to information in the following folios:

1. folios 118-119, 214-215, 244-247, 249 and 259-261 of Part 1 of the applicant’s file;

2. folios 33-34, 42, 43, 47, 59, 78, 83, 84, 98, 102-103, 104, 107-108, 113-114, 121, 124, 125 and 138 of Part 2 of the applicant’s file;

3. folios 23, 24, 178-180 and 196-198 of the applicant’s sister’s file.

57. In addition, it has relied upon clauses 1(g) in relation to information which has been redacted in the following folios:

1. folios 12, 16, 24, 26, 30, 33, 34, 35, 36, 39, 40, 48, 49, 60-61, 143-147, 148, 149, 162, 163, 167, 173, 190, 198, 207, 210, 219, 233, 239, 275, 276, 277, 279, 280, 281, 282, 288, 289, 291, 292, 304, 309, 321, 322, 327, 328, 330, 333, 362, 402, 403, 424, 425, 427 of Part 1 of the applicant’s file;

2. folios 11, 12, 22, 31, 38, 48, 52, 58, 62, 63, 94, 95, 102-103, 119, 121, 129, 130, 131, 132, 133, 134, 135, 137 of Part 2 of the applicant’s file;

3. folios 11, 22, 25, 29, 32, 33, 41-42, 47, 67, 68, 77-80, 84-85, 166, 171-175, 176, 189-191, 201-202, 209-210, 215-225, 226-228, 244-245, 247, 249, 251, 254 and 263 of the applicant’s sister’s files; and

4. folios 10 and 13-24 in the family casework file.

58. I am not satisfied that the respondent has discharged the onus of establishing that cl 1(g) applies in relation to:

1. folios 118-119 and 214-215 of Part 1 of the applicant’s file;

2. folios 59, 84 and 98 of Part 2 of the applicant’s file;

3. folios 178-180 of the applicant’s sister’s file.

59. Nor has it discharged the onus of establishing that cl 1(g) applies in relation to the information which has been redacted in reliance upon those clauses in:

1. folios 12, 24, 26, 30, 33, 34, 35, 36, 39, 40, 48, 49, 60-61, 143, 144 (1st redaction only), 162, 163, 167, 173, 190, 198, 207, 219, 233, 239, 276 (1st and 2nd redactions), 277 (1st and 3rd redactions), 282, 288, 289, 291, 292, 304, 309, 321, 322, 327, 328 (2nd sentence), 330, 402, 424 and 425 of Part 1 of the applicant’s file;

2. folios 11, 22, 38, 48, 52, 58, 121, 132, 133, 134 of Part 2 of the applicant’s file;

3. folios 22, 25, 29, 32, 33, 41-42, 47, 67, 68, 77-80, 78, 84-85, 166, 171, 190, 201, 202 (first redaction), 210, 215, 219, 220, 221, 222, 223 (second and third redactions upon which cl 1(g) is relied), 224 (first redaction except last entry in first redaction beginning “Ros.”), 226, 228, 232, 263 of the applicant’s sister’s file; and

4. folios 10 and 13-24 in the family casework file;

5. folio 33 of the applicant’s Action Plan.

60. The evidence (including from the folios themselves) does not establish that the information was provided to an agency in confidence or that it could be reasonably be expected that disclosure would prejudice the supply of confidential information to FACS.

61. I am satisfied, from examining the information in question, that cl 1(g) applies where that consideration is relied upon in relation to:

1. folios 16, 48, 144 (2nd redaction only), 145, 146, 147, 148, 149, 210, 244-247, 249, 259-261, 275 and 276 (3rd, 4th and 5th redactions), 277 (2nd and 4th (after “day”) redactions), 279, 280, 281, 289 (after the word “rift” to the end of that sentence), 328 (1st sentence of redaction), 333, 358, 362, 403, 424 and 427 of Part 1 of the applicant’s file,

2. folios 12, 31, 33, 34, 42, 43, 47, 53, 54, 62, 63, 78, 83, 84, 94, 95, 98, 102-103, 104, 107, 108, 113, 114, 119, 121, 124, 125, 129, 130, 131, 133, 135, 137, 138 of Part 2 of the applicant’s file;

3. folios 11, 66, 67, 68, 77, 80, 172, 173, 174, 175, 176, 189, 191, 196-198, 202 (second redaction), 209 (last paragraph), 216, 217, 218, 223 (first redaction on which cl 1(g) is relied), 224 (last entry in first redaction beginning “Ros.” and all of second redaction except last line which is all in caps), 227, 244, 245, 247, 249, 251, 254 of the applicant’s sister’s file.

62. In the case of the information referred to in the above paragraph, the Tribunal has concluded, by making inferences from the face of the documents that it could reasonably be expected that disclosure of the information would result in the disclosure of information provided to an agency in confidence within cl 1(g).

Personal information (cl 3(a))

63. The respondent relies upon the consideration that disclosure of much of the withheld information could reasonably be expected to reveal an individual’s personal information (GIPA Act, s 14, table, cl 3(a)).

64. I am satisfied that the personal information of persons other than the applicant is present throughout the documents containing information the applicant seeks. It is, in each case, information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion (GIPA Act, Sch 4, cl 4(1)). There is nothing to suggest that any of the information has been publicly disclosed, so that to disclose it to the applicant would be to “reveal” it within cl 3(a) in the table to s 14 (see Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services[2012] NSWADT 195 at [169]).

Personal information of a child (cl 3(g))

65. The respondent has indicated in the submissions contained within Ms Jomaa’s statement that it seeks to rely upon the consideration that, in the case of the disclosure of personal information about a child, disclosure of the withheld information could reasonably be expected to disclose information that it would not be in the best interests of the child to have disclosed.

66. The respondent submitted that in the alternative to cl 3(a), “the majority of the documents which the Respondent refused access in this category also fall within the category of information the disclosure of which could reasonably be expected to have the effect outlined in clause 1(d) and 1(g) and 3(g) of the table of section 14 of the GIPA Act.” The schedules of documents it provided indicate that it only relies on cl 1(d) and (g) in a small proportion of instances where it also relies upon cl 3(a). Those schedules do not make any reference to cl 3(g). Further, the copies of the documents themselves which have been provided to the Tribunal, and which indicate the material which is redacted and the basis for the redaction, do not indicate any reliance upon cl 3(g). In these circumstances, it is unclear where and whether the respondent seeks to rely upon cl 3(g).

67. In addition, the respondent has not addressed the question of whether cl 3(g) applies where a person who is mentioned in a document was a child at the time the document was created irrespective of the person’s current age, or whether it only applies where the individual in question is currently a child. The words “it would not be in the best interests of the child” suggest that the latter is intended. All of the children referred to in the documents are now adults. In the absence of submissions from the respondent as to the application of this clause, I am not persuaded that it applies to individuals who are no longer children.

68. Given that the respondent has not clearly indicated the instances in which it relies upon cl 3(g), and that it has not persuaded me that the clause applies in respect of persons who are now adults, I find that it has not discharged its onus of establishing that this public interest consideration applies in relation to any of the information the applicant seeks.

Balancing of public interest considerations

69. The Tribunal must weigh the competing considerations for and against disclosure of the information sought, in order to determine whether there is an overriding public interest against disclosure of government information (GIPA Act, s 13).

70. I have taken as a starting point the general presumption in favour of the disclosure of government information (GIPA Act, s 5). I have given significant weight to the public interest in providing the applicant with her personal information. I have also given substantial weight to the personal factors of the application, particularly the applicant’s relationship with the persons referred to in the FACS files (such as her parents and foster parents) and her identity as a former foster child seeking access to her file and that of her sister. There is a strong public interest in providing individuals who have been in out of home care with their personal information in records concerning that care, as is now recognised in s 168 of the CYPCP Act. I also give some weight to the applicant’s motives in seeking access to the information.

71. I have given varying degrees of weight to the personal information consideration against disclosure (cl 3(a)) and the confidential information consideration against disclosure (cl 1(g)), depending upon the context of the information and its sensitivity. However, the weight I have given to these considerations is diminished by the effluxion of time since the information or opinion was given, created or expressed. As indicated earlier in these reasons, much of the information in question is over 30 years old.

72. Where the information in question has solely concerned individuals other than the applicant, I have given the personal information consideration against disclosure greater weight, because it is not the applicant’s personal information, especially if it does not relate directly to her.

73. The balancing process has been made more complicated by the fact that there are many duplicate documents in the applicant’s file and the applicant’s sister’s file, but the respondent has frequently made inconsistent decisions in respect of the information in those documents. The respondent has repeatedly provided access to information concerning the applicant’s sister appearing in the applicant’s sister’s file, while refusing access to the same information when appearing in the applicant’s file. Whilst in many cases I would have refused access to information concerning the applicant’s sister, where the applicant has been granted access to that information as it appears in one file, it would be absurd to refuse access to the same information in another file. Although the personal information consideration still applies (as the information has not been publicly disclosed), I have given it almost no weight in its application to material which has already been provided to the applicant. The corresponding documents in the applicant’s files and her sister’s files are identified in the tables below.

74. I have considered that the balance of public interest considerations is more likely to favour the provision of access where the personal information is that of the applicant’s biological mother or father, because the personal factors of the application favour providing the applicant with access to the information. That is, the applicant’s identity as a former foster child and as the biological daughter of her parents, are personal factors in favour of providing her with information about her biological parents.

75. The public interest considerations against disclosure are generally of greater weight when both the personal information and confidential information considerations apply (that is, when cl 3(a) and cl 1(g) both apply to the information in question).

76. After balancing the public interest considerations in favour of disclosure and the applicable public interest considerations against disclosure (that is, the considerations in cl 1(g) and 3(b)), I have decided to vary the respondent’s decision to refuse access to the information as indicated in the following paragraphs (Administrative Decisions Review Act 1997, s 63(3)(a)).

Applicant’s file Part 1

77. The respondent’s decision to refuse to provide access to information in Part 1 of the applicant’s file is upheld, other than as indicated below:

Folio	Access is to be granted to the following:	Corresponding folio in applicant’s sister’s file
11	All information
12	All information	22
15	All information
16	All information except information in respect of which clause 1(g) is relied	11
21	All information except name which appears twice in first paragraph (after “her name as” and “the girl”)	15
22	All information	16
24	All information	25
25	All information	17
26	All information
29	All information
30	All information	45
31	All information except that in redaction following the word “hospital”	44
33	All information	42
34	All information	41
35	All information	40
36	All information	39
37	All information	50
39	All information	48
40	All information	47
44	All information
45	All information	29
46	All information except information in last redaction	32
48	All information except first sentence after the words “Western Australia assisted.”	51
49	All information	52
61	Information to which access has been granted in folio 68 of applicant’s sister’s file	68
65	All information except dates of birth in first paragraph	71
67	All information except information in last sentence in fourth paragraph and in last sentence on page	81
68	All information	80
69	All information except: • information following words “was born” in third paragraph to the words immediately preceding “She went back” in that paragraph; and • information in fourth paragraph.	79
70	All information except information in first sentence of third paragraph on page	78
71	All information on page except for information in the paragraph beginning “In the course of”	77
85	Information to which access is granted in folio 85 in applicant’s sister’s file	85
86	Information to which access is granted in folio 84 in applicant’s sister’s file	84
88	All information
90	All information	92
91	Information in the first redaction (lines 2 and 3 on page)	91
97	Information to which access is granted in folio 101 in applicant’s sister’s file	101
98	Information to which access is granted in folio 102 in applicant’s sister’s file	102
101	Information to which access is granted in folio 104 in applicant’s sister’s file	104
102	All information	103
103	Information except that in first two redactions on page	108
104	Information in paragraph following the number “3”	107
112	All information	114
114	All information	116
115	All information	117
118	All information
119	All information
121	Information in first redaction on page	121
122	All information	125
123	All information	124
124	All information	123
126	All information	130
127	All information	132
128	All information	132
129	All information	128
130	All information	127
131	All information	126
132	All information	129
133	All information	135
134	All information	134
136	All information	137
137	All information	136
138	Information to which access has been granted in folio 139 of the applicant’s sister’s file	139
139	All information	138
141	Information to which access has been granted in respect of folio 168 of the applicant’s sister’s file	168
142	Information to which access has been granted in respect of folio 167 of the applicant’s sister’s file	167
143	All information	171
144	Information to which access has been granted in respect of folio 172 of the applicant’s sister’s file	172
145	Information to which access has been granted in respect of folio 173 of the applicant’s sister’s file	173
147	Information to which access has been granted in respect of folio 175 of the applicant’s sister’s file	175
148	Information to which access has been granted in respect of folio 176 of the applicant’s sister’s file	176
151	Information in last redaction (following words “to her.”)	196
152	All information	177
153	Information to which access has been granted in respect of folio 191 of the applicant’s sister’s file	191
154	Information to which access has been granted in respect of folio 190 of the applicant’s sister’s file	190
155	Information to which access has been granted in respect of folio 189 of the applicant’s sister’s file	189
156	Information to which access has been granted in respect of folio 188 of the applicant’s sister’s file	188
157	Information to which access has been granted in respect of folio 187 of the applicant’s sister’s file	187
160	All information	200
161	All information	203
162	Information to which access has been granted in respect of folio 204 of the applicant’s sister’s file	204
163	Information to which access has been granted in respect of folio 205 of the applicant’s sister’s file	205
164	Information in first redaction (being a surname)
166	Information except that in last paragraph, unless access to this information has already been provided.	209
167	Information in four words after “Office” in 3rd redaction and information in last redaction (beginning “Liaise”) and any additional information to which access has been given in folio 210 of applicant’s sister’s file	210
172	Information in last sentence of first redaction and in all of second redaction	227
173	Information in first redaction and second redaction, information following third asterisk; information following fifth asterisk; information in redaction after the number “8”	228
176	All information	243
177	Information to which access has been granted in respect of folio 244 of the applicant’s sister’s file	244
178	Information to which access has been granted in respect of folio 245 in the applicant’s sister’s file	245
179	Information to which access has been granted in respect of folio 246 in the applicant’s sister’s file	246
180	All information	260
181	All information	261
182	All information	262
183	All information	263
184	All information	264
185	All information	265
186	All information	266
189	All information
190	All information
192	All information
198	All information
199	All information
200	Information in second redaction
206	All information
214	All information
215	All information
216	All information
217	All information
218	All information
219	All information
220	All information
221	All information
223	Information in first redaction
224	All information
226	Information in first redaction (handwritten words) and second redaction (after “over years.”)
227	Information in first redaction (surname)
228	Information in first redaction (surname)
229	Information in first redaction (surname), information in fourth redaction (after the words “was raised”) and fifth redaction (after the words “the father”).
230	Information in surname at top of page (after “Case Conference – “)
231	All information
233	All information
237	All information
238	Information redacted on left hand side, about 5 lines from the top of the page
239	A copy of folio 239 has been provided, with folio 240 covering most of it. Access is to be provided to the whole of 239 (without folio 240 covering it) if the respondent holds it
240	All information
253	All information
258	All information
264	All information
270	All information
271	Information in first redaction
274	Information in fifth redaction (after word “probably”) and sixth redaction (after word “living”) and seventh (after word “mother”)
275	Information in first two redactions (relying upon cl 10 of Sch 1) and in redaction after “late 1985” (about 9 lines down from the top of the page)
277	Information in first and third redactions relying upon cl 1(d) and 1(g) (after “morning” and “at all”); Information in entry of 1.4.85 except last two sentences
278	Information in first and second redactions (after “one” and “daughters”); information in fifth redaction (after “child”)
279	Information in first and third redactions (after “shifts” and “1987”).
280	Information in redaction after “sailor” at bottom of page
282	All of the information in the first paragraph (following the word “care”); Information in first two sentences and last sentence of the second paragraph; information in redactions after “back” and “long” in paragraph 4(b)
288	All information
289	Information in redaction in relation to which cl 1(d) and (g) are relied upon, except information following the word “rift” to the end of that sentence
290	Information in first redaction
291	All information
292	First two redactions (surnames)
297	All information
304	All information
310	All information
319	All information
322	Information in second redaction (following “arrangements”)
327	All information
330	Information in first two redacted words (a surname)
331	Information in second redaction (after number 5)
332	Information in first two redacted words (a surname)
333	Information in first two redactions (after “Department” and “discuss”)
334	All information
337	Information in second redaction (before the word “papers”)
353	Information in redaction following words “from her care”
358	Information in part of redaction at bottom of page from “St Marys” to end
359	All information
361	All information
363	All information
398	All information
399	All information
401	All information
413	All information
414	All information
421	All information
424	Information in first redaction (after “now has”)
426	Information in first redaction (after “deceased”) and fourth redaction (after “pursued”)
427	Information in first redaction (before “to see”), second redaction (after “children”) and redaction in entry of 1.4.87 (after “WA”)
428	All information in entries of 17.11.84, 1.4.85, 20.9.85 and 15.12.85
430	Information in entry of 21.2.83 from “Department” to end of entry and date at start of entry; information in entry of 27.6.83
431	All information in entry of 29.8.82
432	Information in first redaction (after “PUTATIVE”)

Applicant’s file Part 2

78. The respondent’s decision to refuse to provide access to information in Part 2 of the applicant’s file is upheld, other than as indicated below:

Folio	Access is to be granted to the following:
12	Information in first and second redactions (second redaction being the line below “Hospital”)
14	Information in first and third redactions (after “Father” and above and to the right of the applicant’s name)
15	All information
21	All information
22	All information
31	Information in second redaction (information after second and third asterisks on page)
33	Information redacted up to “problem” (6th line after second entry for “27/10/97”) and information in material redacted from “Jodie not” to end of page.
34	All information except four words after “Stephen”
38	All information
41	All information
42	All information except that contained in dash point beginning “Jodie” and dash point under that.
43	All information except for that contained in dash point beginning “If run”
45	All information
46	All information
47	All information
48	All information
52	All information
53	All information
54	All information except that within fourth, fifth, seventh and eighth dash points
58	All information
59	All information
62	All information
78	All information
83	All information except that within 3rd to 7th dash points (beginning “Finding”)
84	All information
91	All information
102	Information within first dash point (beginning “P/C”); fifth dash point (beginning “Jody”) to fourteenth dash point (ending “with anything”); and 3rd dash point from bottom of the page (beginning “She won’t”) to the bottom of the page
103	Information within first 11 dash points on page (to “… than this”) and last two dash points (from “The stuff…”).
104	All information except that within fourteenth dash point (beginning “Gone”)
107	All information except material from second line (beginning “She”) to end of twelfth line (ending “money”).
108	All information
113	All information except that within third dash point (beginning “Had”)
114	All information
119	All information except first redacted sentence (starting “She”)
121	All information
124	All information
125	All information
129	All information
130	All information
131	All information except information in first redaction (in eighth and ninth dash points on page)
132	All information except information in cl 3(a) redaction (after “let her”)
133	All information
134	All information
136	All information
137	Information in first redaction (after “housing”) and second redaction (after “nights”)
138	All information
141	All information
145	All information

79. The respondent’s decision to refuse to provide access to information in the Action Plan is upheld, other than as indicated below:

Folio	Access is to be granted to the following:
3	All information
4	Information which is surnames of applicant’s foster brothers
7	Information identifying the applicant’s father
9	All information
16	All information
18	Information in first redaction after “Jodie is”, second redaction (after “notified on”), and third redaction, after “lifestyle”
19	All information
23	Information as per decision re folio 11 (which is the same)
24	Information as per decision re folio 12 (which is the same)
25	Information as per decision re folio 13 (which is the same)
26	Information as per decision re folio 14 (which is the same)
27	Information as per decision re folio 15 (which is the same)
28	Information as per decision re folio 16 (which is the same)
29	Information as per decision re folio 17 (which is the same)
30	Information as per decision re folio 18 (which is the same)
31	All information
33	Information in whole of entry under entry of 8/10/82; information in entry for 2/11/82; and information in last entry other than last eight words
34	Information in entry for 27/6/83
35	Information in first redaction
36	Information in last redaction

80. The respondent’s decision to refuse to provide access to information in the Additional Pages in the applicant’s file is upheld, other than as indicated below:

Folio	Access is to be granted to the following:	Corresponding folio in applicant’s file Part 1
1	All information	334
2	Information to which access has been granted in respect of folio 333 of Part 1 of the applicant’s file	333
3	Information to which access has been granted in respect of folio 332 of Part 1 of the applicant’s file	332
4	Information to which access has been granted in respect of folio 331 of Part 1 of the applicant’s file	331
5	Information to which access has been granted in respect of folio 330 of Part 1 of the applicant’s file	330
6	Information to which access has been granted in respect of folio 329 of Part 1 of the applicant’s file	329
7	Information to which access has been granted in respect of folio 328 of Part 1 of the applicant’s file	328
8	All information	327
9	Information to which access has been granted in respect of folio 283 of Part 1 of the applicant’s file	283
10	Information to which access has been granted in respect of folio 282 of Part 1 of the applicant’s file	282
11	All information
12	Information to which access has been granted in respect of folio 281 of Part 1 of the applicant’s file	281
13	Information to which access has been granted in respect of folio 280 of Part 1 of the applicant’s file	280
14	Information to which access has been granted in respect of folio 279 of Part 1 of the applicant’s file	279
15	Information to which access has been granted in respect of folio 278 of Part 1 of the applicant’s file	278
16	Information to which access has been granted in respect of folio 277 of Part 1 of the applicant’s file	277
17	Information to which access has been granted in respect of folio 276 of Part 1 of the applicant’s file	276
18	Information to which access has been granted in respect of folio 275 of Part 1 of the applicant’s file	275
19	Information to which access has been granted in respect of folio 274 of Part 1 of the applicant’s file	274
20	Information to which access has been granted in respect of folio 258 of Part 1 of the applicant’s file	258
21	All information
22	All information
23	All information
25	Information in first sentence of first redaction (after “consent”) and all information in third redaction (after “adoption”)
26	Information to which access has been granted in respect of folio 353 of Part 1 of the applicant’s file	353
27	Information to which access has been granted in respect of folio 352 of Part 1 of the applicant’s file	352
31	All information
34	All information

81. In the course of these proceedings, the respondent identified an additional 20 pages of material which it identified as “Foster Care File.” The respondent explained in a letter to the Tribunal dated 3 May 2016 that this file “was processed by the delegate at the request of the Applicant made at a planning meeting”, that request being “for the Respondent to go through other files not processed under the GIPA applications, and look specifically for information concerning ‘abuse in care’.”

82. The respondent has provided the Tribunal with an electronic copy of that file.

83. The applicant’s first application to the respondent for access to government information, made by her solicitors on 23 April 2013, was for the “entire departmental file relating to our client’s foster care”. On 17 January 2014, the applicant made a second application to the respondent for access to government information, being the “entire departmental file relating to the foster care of” the applicant’s sister. This second application was narrowed by date range, in consultation with the respondent, in February and March 2014.

84. The Foster Care File contains information which was not the subject of either of the applicant’s applications to the respondent for access to information. For example, the file contains an application for a licence to conduct a private foster home, which is clearly not part of the departmental file relating to the applicant’s foster care or to the foster care of her sister. The respondent’s decision in relation to access to this additional information is therefore not before the Tribunal for review and the Tribunal has no jurisdiction to review that decision. I note, however, that some of the documents in the Foster Care File are also contained in the files reviewed by the Tribunal, and the Tribunal has reviewed the respondent’s decision in relation to the information in those documents. Further, the respondent may, if it chooses to do so, release the information to the applicant under s 8(1) of the GIPA Act, unless there is an overriding public interest against disclosure of the information.

85. The respondent’s decision to refuse to provide access to information in the applicant’s sister’s file is upheld, other than as indicated below:

Folio	Access is to be granted to the following:	Corresponding folio in applicant’s file Part 1
11	All information except information in respect of which clause 1(g) is relied	16
15	Information to which access is granted in folio 21 of Part 1 of the applicant’s file	21
16	All information	22
17	All information	25
22	All information	12
25	All information	24
29	All information	45
32	Information to which access is granted in folio 46 of Part 1 of the applicant’s file	46
33	All information
39	All information	36
40	All information	35
41	All information	34
42	All information	33
44	Information to which access is granted in folio 31 of Part 1 of the applicant’s file	31
45	All information	30
46	All information	29
47	All information	40
48	All information	39
49	Information to which access is granted in folio 38 of Part 1 of the applicant’s file	38
50	All information	37
51	Information to which access is granted in folio 48 of Part 1 of the applicant’s file	48
52	All information	49
53	All information
62-65	All information
66	Only the information which has not been redacted on this page (note: the respondent does not refer to folio 66 in its schedule, but has provided the Tribunal with a redacted copy of this page, relying on cl 1(d) and 1(g) in the table to s 14)
68	Information in first redaction on page
71	All information except dates of birth in first paragraph (note: the respondent does not refer to folio 71 in its schedule, but has provided the Tribunal with a redacted copy of this page, relying on cl 3(a) in the table to s 14)	65
77	All information on page except for information in the paragraph beginning “In the course of”	71
78	Information to which access is granted in respect of folio 70 of the applicant’s file, Part 1	70
79	Information to which access is granted in respect of folio 69 of the applicant’s file, Part 1	69
80	All information	68
81	All information except information in last sentence in fourth paragraph and in last sentence on page	67
83	All information
84	It is not clear to which information the applicant has been granted access on this page. Access is to be granted to all information except that in the three paragraphs under the heading “GENERAL”, unless access has already been granted to information in these paragraphs.	86
85	Information in the redaction marked “not relevant”	85
91	Information in the first redaction (lines 2 and 3 on page)	91
92	All information
101	All information except the redacted information following the words “in Perth” and “risk factors”	97
102	All information except the redacted information following the words “in Perth” and “risk factors”	98
104	All information except that in the three paragraphs following the heading containing the applicant’s sister’s name, unless this has already been provided to the applicant. (Note that respondent indicated it was relying upon cl 3(a) but did not identify the information to which it says the public interest consideration applies.	101
108	All information except information in first two redactions on page	103
117	All information	115
121	Information in first redaction on page	121
123	All information	124
127	All information	130
130	All information
134	All information	134
135	All information	133
153	Information in redactions other than first two redactions
164	Information in redactions other than first two redactions
166	All information
168	Information in second redaction (after word “mother”)	141
169	All information
171	All information	143
172	All information except that in first redaction and last redaction
177	All information	152
178	All information
179	All information
180	All information
184	All information
185	All information
190	Information in first redaction from “I gather” (in last line of the redaction), information in third redaction (before the words “(in the”), information in fourth redaction from beginning of redaction up to “a long time” and from “is currently” to “hand” and information in second last and third last redactions on page (following the words “7 a.m.”)	154
193	All information
196	Information to which access has been granted in respect of folio 151 of Part 1 of the applicant’s file	151
197	Information to which access has been granted in respect of folio 150 of Part 1 of the applicant’s file	150
198	Information to which access has been granted in respect of folio 149 of Part 1 of the applicant’s file	149
200	All information	160
201	Information in first redaction (name) and second redaction (surname)
209	Information except that in last paragraph, unless access to this information has already been provided. (Note: it is not clear which information the cl 1(g) claim applies to; however, the Tribunal finds that it is applies to the information in the last paragraph).	166
210	Information as per folio 167 in Part 1 of applicant’s file (Note: it is not clear which information the respondent’s public interest claims apply to).	167
212	All information
215	All information
216	Information from “Rod: What is” to end of redaction.
218	All of the information in the last two entries on page (beginning “Unis:” and “Dorothy:” (from “The Department has never” onwards).
219	All information
220	All information except that in first redaction on page and last sentence of last redaction on page
222	All information
223	All information except information in first entry of “Mrs M” from “The boys” to “fitted”.
224	All information in first redaction except last entry beginning “Ros.” and last line of second redaction, which is all in capital letters
226	Information in first redaction on page	171
227	Information in last sentence of first redaction; information in first sentence of last redaction	172
228	Information to which access has been granted in respect of folio 173 in Part 1 of the applicant’s file	173
231	First and third redactions on page
232	All information
245	Information on this page to which access has been granted in respect of folio 178 in Part 1 of the applicant’s file	178
246	Information in first redaction	179
262	All information	182
263	All information	183
264	All information	184
265	All information	185

86. The respondent refused to provide access to folios 93 to 100 of the applicant’s sister’s file on the ground “not relevant”. This is not a ground on which access to information may be refused under the GIPA Act. The information sought is within the applicant’s sister’s file so is caught by the applicant’s access application.

87. Notwithstanding the respondent’s failure to refer explicitly to a public interest consideration upon which it relies in respect of folios 93 to 100, I have decided to uphold the respondent’s decision to refuse to provide access to the information on the basis that there is an overriding public interest consideration against disclosure of information in that it is somebody else’s personal information (cl 3(a)). Although the respondent has the onus of establishing that its decision to refuse access to the information is justified, the information is that of a third party or third parties who has not or have not had an opportunity to comment on the disclosure of the personal information. In addition, I interpret the respondent’s claim that the information is “not relevant” (next to which it has noted, on the revised schedules, that the information pertains to another child) as encapsulating the personal information consideration in substance, even though this is not made explicit.

Orders

88. The respondent’s decision to refuse to provide access to information is varied in accordance with paragraphs 32, 77, 78, 79, 80 and 85 of this decision, and the respondent is to provide the applicant with access to information in accordance with those paragraphs within 28 days of the date of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 June 2018